or varied. Comyns' void for simony (r); and Mirehouse is of opinion that it is now settled that, as no interest is vested before institution, a lay patron may revoke (s). As to the power of varying, it is agreed on all hands that this may be done by a common person; that is, after one clerk has been presented, he may (before admission given) present another; but with this difference from a revocation, that where a patron does thus vary cumulando the ordinary may choose and admit which of the clerks he pleases (t). But this power of varying belongs to laymen only, and not to ecclesiastical persons of any kind; because they are supposed in law to be competent judges of the sufficiency of the person, and do therefore proceed by judgment and election; and whoever elects an unfit person is ipso jure deprived of the power of electing (u). This distinction between laymen and ecclesiastical persons is to be found in the Decretal of Gregory, iii. 38, 24, and in Lindwood, p. 215. If a layman present two, judicio episcopi relinquendum est; if a college or ecclesiastical person present two, Qui prior est tempore jure potior esse videtur. The following dicta are to be found in Comyns' Digest, supported by cited authorities, tit. Esglise (H. 10). The king may revoke any time before induction, though a letter be sent to the archdeacon to induct, and on the second presentation the former is void without notice to the ordinary. A patroness, though a spiritual person, as an abbess, might vary her presentation, for she is not more apprised than a lay patron of the sufficiency of her clerk. If the king make a second presentation without mention or revocation of the former, it is void; that is to say, if it be after institution to the former. So too, if the second presentation be obtained by deceit or covin to the king, it is void. Original right of examination in the bishop. SECT. 5.-Examination by the Ordinary. The next division of the present subject relates to one of the most important features in the government of the church, namely, the duty and right of the ordinary to examine the presentee, and, if he be found unfit, to refuse him institution. It is very well known, as observed by the learned Stillingfleet, that in the settlement of this church of England, the bishops of the several dioceses had them under their own immediate care; and that they had the clergy living in a community with them, (r) Rogers v. Holled, 2 Black. W. p. 1039. (8) Mirehouse on Advowsons, p. 157. (t) Gibs. p. 795; Wats. c. 20, p. 225. (u) Ibid. See Att.-Gen. v. Wycliffe, 1 Ves. p. 79. whom they sent abroad to several parts of their dioceses, as they saw occasion to employ them; but that by degrees they found a necessity of fixing presbyters within such a compass to attend upon the service of God amongst the 'inhabitants; that these precincts, which are since called parishes, were at first much larger; that when lords of manors were inclined to build churches for their own conveniences, they found it necessary to make some endowments to oblige those who officiated in their churches to a diligent attendance; that upon this, the several bishops were very well content to let those patrons have the nomination of persons to those churches, provided they were satisfied of the fitness of those persons, and that it were not deferred beyond a limited time. So that the right of patronage is really but a limited trust; and the bishops are still in law the judges of the fitness of the persons to be employed in the several parts of their dioceses. But the patrons never had the absolute disposal of their benefices upon their own terms; but if they did not present fit persons within the limited time, the care of the places did return to the bishop, who was then bound to provide for them (x). And by the statute of Articuli Cleri, 9 Edw. 2, st. 1, c. 13, 9 Edw. 2, it is enacted as follows: "Also it is desired that spiritual per- st. 1, c. 13. sons, whom our lord the king doth present unto benefices of the church (if the bishop will not admit them, either for lack of learning, or for other cause reasonable) may not be under the examination of lay persons in the cases aforesaid, as it is now attempted, contrary to the decrees canonical; but that they may sue unto a spiritual judge for remedy, as right shall require.' The answer: "Of the ability of a parson presented unto a benefice of the church, the examination belongeth to a spiritual judge; so it hath been used heretofore and shall be hereafter." Of the Ability of a Parson presented.]—De idoneitate personæ : So that it is required by law that the person presented be idonea persona; for so be the words of the king's writ; præsentare idoneam personam. And this idoneitas consists in divers exceptions against persons presented: 1. Concerning the person, as if he be under age, or a layman. 2. Concerning his conversation, as if he be criminous. 3. Concerning his inability to discharge his pastoral duty, as if he be unlearned, and not able to feed his flock with spiritual food (). And the examination of the ability and sufficiency of the person presented belongs to the bishop, who is the ecclesiastical judge; and in this examination he is a judge, and not a minister, and may and ought to refuse the person presented, if he be not idonea persona (z). (x) 1 Stillingfleet, Eccl. Cas.-A discourse concerning bonds of resignation-p. 32. See Selden on Tithes, c. 12, § 2, p. 375. (y) 2 Inst. p. 631. Ibid. See Willis v. Bp. of The Examination belongeth to a Spiritual Judge.]-Lord Coke says that in some cases, notwithstanding this statute, idoneitas persona shall be tried by the country, or else there should be a failure of justice, which the law will not suffer; as if the inability or insufficiency be alleged in a man that is dead, this case is out of the statute; for in such case the bishop cannot examine him; and consequently, though the matter be spiritual, yet shall it be tried by a jury; and the court, being assisted by learned men in that profession, may instruct the jury as well of the ecclesiastical law in that case, as they usually do of the common law (a). It is to be observed that Lord Coke speaks of some cases; what these cases are will be seen by reference to the subsequent cases of Rex v. Archbishop of Canterbury and Bishop of London (b), and The Bishop of Exeter v. Marshall (c). And so it hath been used heretofore.]-So as this act is a declaexamination. ration of the common law and custom of the realm (d). Time for Canon 95. By a constitution of Archbishop Langton: "We do enjoin that if any one be canonically presented to a church and there be no opposition, the bishop shall not delay to admit him longer than two months, provided he be sufficient" (e). But by Can. 95 of 1603, "Albeit by former constitutions of the church of England, every bishop hath had two months space to inquire and inform himself of the sufficiency and qualities of every minister, after he hath been presented unto him to be instituted into any benefice; yet for the avoiding of some inconveniences, we do now abridge and reduce the said two months unto eight and twenty days only. In respect of which abridgment we do ordain and appoint that no double quarrel shall hereafter be granted out of any of the archbishop's courts, at the suit of any minister whomsoever, except he shall first take his personal oath, that the said eight and twenty days at the least are expired, after he first tendered his presentation to the bishop, and that he refused to grant him institution thereupon; or shall enter bonds with sufficient sureties to prove the same to be true; under pain of suspension of the grantor thereof from the execu tion of his office for half a year toties quoties, to be denounced by the said archbishop, and nullity of the double quarrel aforesaid so unduly procured, to all intents and purposes whatsoever. Always provided, that within the said eight and twenty days, the bishop shall not institute any other to the prejudice of the said party before presented, sub pœna nullitatis. Every Bishop hath had.]-The canon mentions bishops only, because institution belongs to them of common right; but it must also be understood to extend to others (if there be any such now left in existence), who have this right by privilege or (a) 2 Inst. p. 632. (d) 2 Inst. p. 632. custom, as deans, deans and chapters, and others who have peculiar jurisdictions (f). To inquire and inform himself.]-In answer to an objection made that the bishop ought to receive the clerk of him that comes first, otherwise he is a disturber, Hobart says the law is contrary; for as he may take competent time to examine the sufficiency and fitness of a clerk, so he may give convenient time to persons interested, to take knowledge of the avoidance (even in case of death, and where notice is to be taken and not given) to present their clerks to it. Agreeable to what is held elsewhere, that it was a good plea for the ordinary, and no refusal of the clerk, that the ordinary having other business commanded the clerk to come to him afterwards to be examined; and that the clerk not returning and the six months passing, the ordinary was well entitled to the lapse (g). By Can. 39 of 1603, "No bishop shall institute any to a Canon 39. benefice who hath been ordained by any other bishop, except he Manner of first show unto him his letters of orders, and bring him a suffi- examination. cient testimony of his former good life and behaviour, if the bishop shall require it; and, lastly, shall appear, upon due examination to be worthy of his ministry." Except he first show unto him his Letters of Orders]-And by 14 Car. 2, c. 4, s. 10, no person shall be capable to be admitted to any parsonage, vicarage, benefice, or other ecclesiastical promotion or dignity whatsoever before such time as he shall be ordained priest. And bring a sufficient Testimony of his former good Life and Behaviour.]-By the ancient laws of the church, and particularly of the church of England, the four things in which the bishop was to have full satisfaction in order to institution, were age, learning, behaviour, and orders. And there is scarce any one thing which the ancient canons of the church more peremptorily forbid than the admitting clergymen of one diocese to exercise their functions in another without first exhibiting the letters testimonial and commendatory of the bishop by whom they were ordained. And the constitutions of the archbishops Reynolds and Arundel show that the same was the known law of the English Church, to wit, that none should be permitted to officiate (not so much as a chaplain or curate) in any diocese in which he was not born or ordained, unless he bring with him his letters of orders and letters commendatory of his diocesan (h). Notwithstanding which, in the case of Palmes v. the Bishop of Palmes v. Peterborough (33 Eliz.) on a quare impedit brought against the Bishop of bishop, the bishop pleaded that he demanded of the presentee of Peterborough. the plaintiff to see his letters of orders, and he would not show them; and also he demanded of him letters missive or testimonial, (f) Gibs. p. 804. See Wrighton p. 46; Elvis v. Abp. of York, Hob. v. Browne, 3 Lev. p. 212. P. 317. (9) Gibs. p. 804; Anon., 3 Leon. (h) Gibs. p. 806; Lind. p. 139. Bishop of testifying his ability: and because he had not his letters of Which most of the books take notice of as a pretty hard case, and in which perhaps the bishop's taking advantage of the lapse might be some part of the consideration. And these words of the canon (which was made not many years after) seem to have some reference or retrospect to that determination. But it is to be observed, first, as to the letters of orders, that it was only adjudged not to be necessary to produce the very letters of orders; for they might be lost, and proof thereof might otherwise be very well made from the registry of the bishop who ordained the clerk; or else it would follow that every clergyman whose letters of orders are lost or consumed by fire or other accident, would be incapable to be admitted to a benefice. And as to the letters testimonial, the bishop charged that he did not bring such letters testifying his ability, which the court seems to have understood of his ability as to learning, of which without doubt the bishop must judge upon examination; but the bishop ought to have set forth that he did not produce letters missive or testimonial of his good life and behaviour. In the case of The Bishop of Exeter v. Marshall, the House of Lords ruled as follows: That the right of a patron to present to a benefice is a legal right, subject in its exercise to the bishop's right to examine into the fitness of the presentee, and to reject him for sufficient ground. That a clerk who has held preferment in one bishopric is not, on being presented to a living in another bishopric, bound, as a condition precedent to his examination on the question of fitness, to produce letters testimonial and commendatory from his former bishop. That in quare impedit, upon a rejection of the patron's presentee, the bishop must state not only that the presentee is not a fit person, but also in what respect he is not fit, and state it in such a manner as will enable the patron to take issue on the objection, and a proper tribunal to judge of its soundness. That an allegation in the plea that the bishop had good reason to believe that the presentee had been guilty of an attempt to commit simony is not sufficient: and it would seem that a plea alleging presentation by the bishop as on a lapse must (i) Cro. Eliz. p. 241; S. C., 1 Leon. p. 230. |